U.S. Supreme Court refuses to take Drakes Bay case

SAN FRANCISCO &GT;&GT; The U.S. Supreme Court has refused to hear the Drakes Bay Oyster challenge to a federally ordered shutdown, leaving the shellfish farm in legal limbo.

The decision, made last week by the high court, was announced Monday morning.

"This is a disappointment, but not really a setback," said Drakes Bay owner Kevin Lunny at a morning press conference in San Francisco. "We do plan to continue to fight for what's right."

Lunny and his legal team said they still could pursue other legal options. Plans would be announced over the next few weeks, he said.

"The case now goes back to U.S. District Court in Oakland and we will be evaluating over the next couple of weeks what new claims we might want to bring and how to proceed," said Peter Prows, the attorney representing Drakes Bay.

The appeal to the high court is the latest legal maneuver as the oyster farm attempts to remain open in the face of a federal government order to shut down.

One reason Lunny's team believed the Supreme Court might want to hear the case was to resolve split rulings the U.S. court of appeals system has issued on interpretations of federal law. The splits in this case are on jurisdiction to review agency actions for abuse of discretion and could have set a new clear precedent.

But the Supreme Court apparently did not see enough legal merit in the case to take it on.

Those who want to see the oyster farm close praised the decision not to hear the case.

"The court made the right decision in upholding the long-anticipated oyster lease expiration that protects Drakes Estero, the wild ecological heart of Point Reyes National Seashore," said Amy Trainer, executive director of the Environmental Action Committee of West Marin, in a written statement.

The closure order came on Nov. 29, 2012, when then interior secretary Ken Salazar announced he would allow a 40-year lease — originally negotiated with the Johnson Oyster Co. in 1972 and taken on by Drakes Bay — to expire. In 1972, the federal government bought the land from Johnson for $79,200 and provided the lease. Lunny took over the lease in 2004. Salazar wrote in his decision that Lunny was explicitly informed "no new permit will be issued" after the 2012 expiration date.

In February 2012, U.S. District Judge Yvonne Gonzalez Rogers rejected a preliminary injunction to halt the federally ordered closure of the oyster operation in the Point Reyes National Seashore.

The 9th circuit court agreed to hear the case and review Rogers' decision. In September 2013, a three-judge panel of the 9th circuit ruled it lacked jurisdiction to review Salazar's discretionary decision not to issue a new operational permit for Drakes Bay.

But in that ruling 9th Circuit Judge Paul J. Watford wrote in a dissenting opinion Lunny's request for an injunction should have been granted. That provided the oyster company's supporters hope the court might reconsider that 2-1 ruling, but that didn't happen.

Meanwhile, last week a Marin Superior Court judge confirmed an earlier preliminary ruling that some of the removal and restoration activities required by the state's Coastal Commission may have a negative impact on the physical environment of Drakes Estero and its ecosystem. But that ruling is unlikely to stop the shutdown.

Judge Roy Chernus ruled much of what the commission ordered — obtaining permits for operations, prohibiting culture bags from being placed in eelgrass and cleaning up marine debris, among other orders — will not have a negative impact on the environment and need to be followed. The judge also ruled the commission has jurisdiction over the aquaculture operations and acted within its jurisdiction in issuing the orders.